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Several people have pointed out to me that according to the SMH, like the UK government,

[t]he Rudd Government is considering a three-strikes policy against computer users who download songs illegally.

According to the SMH,

The Government will examine new legislative proposals being unveiled in Britain this week to target people who download films and music illegally. Internet service providers (ISPs) there might be legally required to take action against users who access pirated material.
…
Communications Minister Stephen Conroy said the Government was aware of the views put by the music industry for a code of conduct for ISPs to address file-sharing by subscribers.
…
“We will also examine any UK legislation on this issue [including any three-strikes policy] with particular interest,” he said.

Now, admittedly, I’m an academic in Queensland - I’ve got no idea what is going on in Canberra. But it is worth noting that (a) it would be really weird if the Australian government did not ‘observe with interest’ what happens in the UK, (b) it would be equally weird if the Australian government did not ‘consider’ proposals put by industry, and (c) none of this is new - industry (in the form of MIPI most significantly) have been making this argument for some time (here, here.)

So I’m not presently feeling the need to spend a lot of time on this. Let’s just summarise the main problems with this approach, shall we? (more…)

Blogosphere is a-buzz with leaked news that the UK government might be considering requiring ISPs to monitor copyright infringement, and terminate repeat offenders. See Technollama, the IPKat, TechCrunch here, Boing Boing, Techdirt here, and the original Times Online here, . According to the Times:

Users suspected of wrongly downloading films or music will receive a warning e-mail for the first offence, a suspension for the second infringement and the termination of their internet contract if caught a third time, under the most likely option to emerge from discussions about the new law.

There has been a similar push in Australia by MIPI in particular; I’ve elsewhere (here and here) analysed the MIPI proposals and raised a number of questions about them (similar to the questions most of the blogosphere is raising). What I think is interesting about the UK developments is that it illustrates just how global this particular push is - looks like we have a coordinated (and more recently, more concentrated) push going on across a range of jurisdictions for a similar ‘notice and terminate’ kind of system. Here in Australia, though, it would be very ironic to see ‘Mr Broadband’ Kev Rudd legislating to switch off people’s internet contrary to presumptions of innocence and the like.

Frankly, too, it still seems like a proposal that is several years behind the trend of infringement. P2P is so, well, 10 years ago; bittorrent is used for all kinds of things (much more so than Kazaa or the like could ever claim), and the easiest way to ’share’ copyright material is computer to computer.

Update: Open Rights Group put some of the problems well:

In most families, an internet connection is shared by the entire household - so if Dad gets the connection cut off for sharing movies online, suddenly Mum can’t run her business from home, and the kids can’t get access to the Web to do their homework. The Times estimates that there are 6 million people in the UK who share files illegally on the web. Any serious move towards disconnecting offenders is likely to play havoc with the Government’s ambition to foster an e-enabled society.

What’s more, as soon as law enforcers start snooping for IP addresses to pass on to ISPs for disconnection, hardcore filesharers will simply start using encryption to obfuscate their identities. Then they’ll develop software that makes it easy for non-technical people to do the same. And then industry will be back to square one.

Apropos of a recent post, the latest edition of the Internet Law Bulletin, has an article (or perhaps, more accurately, MIPI Press Release) by Sabine Heindl (General Manager, MIPI) on the issue of suing individuals for downloading or uploading music, and MIPI’s efforts to have ISPs engage in ‘notice and disconnection’ activities. It really doesn’t add anything to the material I explored in my last post, although this paragraph highlights a fact well known to people like me or Alex Malik, perhaps less well known to the general population:

‘The Australian music industry is now in a position to notify ISPs of the IP addresses of copyright infringers, namely those making available copyright-protected music for download on their networks.’

Yes, that’s right. They can see you.

The article pushes the same line we’ve seen in the materials highlighted in my previous post: ‘ISPs should disconnect users’ when they are repeat offenders. What the article doesn’t do is answer all those questions that we still have about any such proposal: (more…)

The case we all thought ended two years ago (Grokster, on the liability of the providers of the file-sharing software) continues at lower levels, with an interesting judgment on final orders, discussed by Ed Felten, and Jason Schultz (part 1, part 2).

Big issue in the case: what kind of injunction to order. Do you order the defendant to stop all infringements using their software? Some? who decides whether the system is ‘good enough’? Clearly, the court has struggled with this issue. It decided on an order that required steps to reduce infringement, but not 100% effectiveness.

This is all sounding very, very familiar. Kazaa redux, methinks.

The Sydney Morning Herald is reporting the news that Music Industry Piracy Investigations (MIPI), the music industry’s copyright enforcement arm, is threatening that they may have to start suing individuals for copyright infringement, if ISPs don’t do what they wish, and ‘exert more control over their users’. but is this news? And is it likely? I don’t think so. But to explain why, we need some backstory.

[UPDATE]: Today’s AFR has more on MIPI’s proposals for ISP monitoring of copyright infringement: see page 40] (more…)

Various reactions to the linking is authorisation’ Cooper decision handed down yesterday by the Full Federal Court:

1. I commented yesterday (summary? ‘troubling’. ‘Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to ‘work’ in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work? Did all this debate completely pass the members of the court by?’)
2. Techdirt have commented (’the idea that it’s the technology creator’s job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It’s a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs’)
3. Boing Boing comments here (’If that precedent were adopted worldwide, there would be no Google, no Wikipedia, no internet as we know it’)
4. Black comments here (’I agree with Kim’)
   
5. The Age has the story here.

As you can see, the tenor of this commentary is - ’shock horror Australian law says linking is infringement; Google’s in trouble’.

Take a deep breath. It’s important to appreciate the limitations of this decision. (more…)

As I anticipated on Friday, and noted earlier today: the Full Federal Court judgment in the Cooper case has been handed down. This is a significant, appeal judgment on the scope of secondary liability in copyright law: that is, when can one person be responsible for the infringing activities of another?

In this case, the Full Federal Court had to consider whether a website, structured and designed both to provide links to infringing MP3 files, and to provide facilities for the easy, automatic upload of such links, could lead to liability for authorising infringement of copyright for the website designer (Cooper), and the hosting ISP (E-Talk) (the website itself, now down, can still be seen (though not used) via the Internet Archive Way Back Machine (the URL was www.MP3s4FREE.net) To be completely clear, Cooper was not hosting infringing mp3s. But his website did provide easy access and a central point for placing links.

At first instance, Tamberlin J held both liable - leading to much commentary, particularly on the breadth of the Australian concept of authorisation. If you’re interested in where Australian law on secondary liability for copyright infringement lay prior to this judgment, and how it compares to US concepts, have a read of this article by copyright leading lights Sam Ricketson (australia) and Jane Ginsburg (US).

Summary: in this judgment, the Full Federal Court has pretty much affirmed the reasoning of the Trial Judge. Overall, I find the reasoning pretty troubling in this case: particularly the reasoning of Branson J, which seems to me to endorse a broader view of appropriate liability than the other judgment of Kenny J. I think the judgment shows three things:

1. That Australian law is out on its own in terms of potential liability for authorisation of copyright infringement. The law is certainly broader - that is, the scope of activities that will potentially lead to liability is wider - than equivalent concepts in the UK (as illustrated in cases like the Amstrad case) or Canada (as illustrated by cases like CCH). And, as Ricketson and Ginsburg point out, it is broader, even, than US law post-Grokster. Anything that would be caught by post-Grokster inducement liability would also be caught by Australian authorisation liability - and then some.
2. More broadly, the case illustrates that Australian copyright law is increasingly becoming a strange, independent beast. The judgments in this case are truly remarkable for their lack of reference to, or engagement with, recent overseas authority or legal developments. Just remarkable.
3. Most remarkably to anyone outside that arcane society of the High Priests and Initiates of Copyright: linking to another website that carries an infringing file does carry some legal risk under the reasoning in this case.

Over the fold, I have some more detail. But let me give you a flavour of what I think. As I read the judgment, quite honestly, I was amazed by the absence of any explicit conscious engagement with the real world. To read this judgment - as I said, particularly the broader one of Branson J - you could be forgive for wondering how much the honourable members of the court actually use the Internet. It’s not way the law is described, it is the fact that the judgments can make comments about the potential liability of a website operator for copyright infringement for the most mundane acts - like, oh - linking to another website - without any acknowledgment that that might be an issue, or a problem, or an even slightly undesirable development in the law. (more…)

Judgment by the Full Federal Court is due in the Cooper litigation (first instance judgment here; commentary here, here, here, here) on Monday.  Cooper deals with issues of authorisation of copyright infringement by an ISP, and by a website that linked to infringing MP3 files.

It’s a biggie, in Australian copyright law terms.  When, exactly, does one ‘authorise’ copyright infringement online?  How current is Moorhouse now?  What do all those Digital Agenda Act provisions really mean?  Plus some cross-jurisdictional issues thrown in for fun… and unlike the Kazaa case, this one didn’t settle to the disappointment of IP academics all over the country.

What a lovely (!) Xmas prezzie from the Full Federal Court.

(hat tip for the alert: Starkoff)

There’s a lot of copyright-amending legislation floating around in Australia right now. The penultimate piece of the puzzle is the new law on copyright enforcement. You can find it on the Attorney-General’s website, here, together with explanatory material.

The appropriate summary of this law is - my, what a long way we have come. Back when the Spicer Committee was considering what copyright law should look like - a consideration which led to the 1968 Act here in Australia, that Committee was, at best, luke-warm about criminalising copyright:

‘330. Some of us doubt the wisdom of inserting criminal provisions in a copyright Act. We realize, however, that they may be desirable in the case of an offender who is a man of little means. Also, it might be said that infringement of copyright somewhat resembles stealing, which is, of course, the concern of the criminal law. In addition, as the provision has been in operation for many years we are not disposed to recommend its repeal…’

How things have changed. Now, we have some unprecedented moves in criminal copyright enforcement:

1. there will now be offences of strict liability - that is, offences for certain commercial dealings in copyright material which do not require proof that the person knew they were dealing with infringing material;
2. a system of ‘on the spot fines’ for copyright infringement.

(more…)

Recently, there has been a considerable amount of attention given to this announcement by Piratpartiet (the Pirate Party of Sweden), which says it has:

launched a new Internet service that lets anybody send and receive files and information over the Internet without fear of being monitored or logged. In technical terms, such a network is called a “darknet”.

The promise seems to be that people can send or receive copyrighted files without breaching copyright.

On the technical side, this looks to be a neat piece of coding. However, on the legal side, sadly for the Piratpartiet, I don’t think it will do what they think, for two reasons. (more…)

Yesterday, I gave a talk in Canberra for the ACT Society for Technology and the Law (thanks for the invite, guys) about P2P file-sharing and liability for copyright infringement. One of the things I mentioned in that talk was the LimeWire suit, and one of the questions I got was about how our law of authorisation of copyright infringement mapped against US law. For people wondering about that question, one very good source is the paper by Jane Ginsburg and Sam Ricketson, Inducers and Authorisers: A Comparison of the US Supreme Court’s Grokster Decision and the Australian Federal Court’s KaZaa Ruling.

But it’s also worth looking at this post by William Patry, and the associated papers: the filing in the RIAA v LimeWire case, in which the RIAA are pleading each different form of liability that arises under the US law. (more…)

Well well well. All the news today reports that Kazaa has settled with the American Music Industry, agreeing to pay $US115 million ($A151 million) and convert to a legal business model with licensing arrangements to be negotiated with record labels (see The Age here, Washington Post here; Techdirt here)

Now I can’t help but wonder whether we have several Federal Court judges who, having spent quite a few days in February hearing the matter, and perhaps a bit of time writing a judgment, are now a little deflated.

Guess we won’t be getting a Full Federal Court view on what constitutes authorisation of copyright infringement. The rather spare reasoning of Justice Wilcox will stand.

Sigh. And I was so looking forward to dissecting another big copyright judgment or two.

Update: more news from Techdirt: apparently some of the settlement is being paid by the Kazaa founders.

Update 2: I’m told by a reader that I shouldn’t despair (yet). As one reader pointed out, the court can still publish reasons where there are ‘principle[s] of general importance’, and an appeal can only be discontinued with leave of the court (which presumably could be refused). And in any event, the appeal in Cooper - another copyright case also raising authorisation issues - is due to be heard in early August…

Update 3: I should have noted before: Peter Black on Freedom to Differ has also commented.

Update 4: First thing this morning: come in to work to find all the newspapers and US blogs reporting the Kazaa settlement. 8:24am: blog the story on Weatherall’s Law, then LawFont. 10:30am: receive notice from the Australian Copyright Council regarding the settlement. 4:48pm: receive Freehills Intellectual Property Update notifying me of the settlement. Observations: (a) the ‘more traditional’ sources of IP news (law firms, Copyright Council) are pretty quick these days; (b) do you think blogs - as part of the ‘always on’ news and information cycle - have anything to do with this? (c) I’m going to be out of a blogging purpose if law firms become more like blogs… won’t that be good!

Update 5: more rather amusing commentary on the settlement from Geeklawyer, and sensible points from Technollama - like, this is hardly a victory, right?

(subtitled: Outcomes of the Fair Use Review Announced).

For the past 12 months, Australia has been going through a major review of its copyright law, and in particular, its exceptions to copyright infringement, with a view to ‘updating’ this material for the digital environment. I note that we are not the only ones: Canada are having an ongoing debate (see Michael Geist on all this), and the UK are having their Gower Review (see here).

Today, the Attorney-General has issued a press release, announcing the results of the review. As yet, the press release does not appear to be online, so I’ll summarise. In essence, the government has decided not to adopt the US ‘fair use’ system - where a broadly worded defence must be assessed on a case-by-case basis. Instead, the government will expand, and amend, existing specific exceptions in Australian law. That makes the amendments complicated, but potentially more certain.

The Attorney-General, Philip Ruddock, is characterising the reforms as:

‘…significant copyright reforms which make our laws fairer for consumers and tougher on copyright pirates.’

According to the AG:

‘These are commonsense amendments which will maintain Australia’s copyright laws as the best in the world for the benefit of our creators and other copyright owners and for hte many Australians who enjoy their creative works.’

I wonder, though. The government does appear to have caved on the issue of the ‘flexible exception’ - the ‘catch all’ provision to except uses not foreseen at the time of this legislation. In my submission, I supported such flexibility, and I’m very sorry to see it apparently not there. I wonder whether in a few years time we will be saying what Bill Cornish (not an IP radical or copyleftist, by any stretch of the imagination) said in his Clarendon Lecture:

‘With rapid technical shifts on the scale of the Internet, there must be a case for giving judges some more general power to excuse at the edges, along US lines. After all, at the centre, legislation is rapidly providing the mainstays of control. As one who tried in 1988 to persuade Parliament to introduce a concept of fair use, I feel now even mroe acutely that our failure was a major rebuff. ‘ (Bill Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (OUP 2004) at page 65)

The press release maintains principles which Ruddock has stated a number of times:

• 1. That copyright must keep pace with technology and rapidly changing consumer behaviour;
• 2. that ‘reasonable consumer use of technology to enjoy copyright material’ should be recognised - ‘Australian consumers should not be in a significantly worse position than consumers in similar countries’
• 3. reforms should not ‘unreasonably harm or discourage the development of new digital markets by copyright owners’
• 4. The unique Australian system should be maintained - we are not moving to US-style fair use;
• 5. the law should be updated to tackle rising copyright piracy, and to support the copyright industries.

In summary, the AG has announced:

1. 2 new private use exceptions - time-shifting and format-shifting;
2. new exceptions allowing schools, universities, libraries, and other cultural institutions to use copyright material for non-commercial purposes;
3. new exceptions for people with disabilities;
4. a new exception to allow use of copyright material for parody or satire;
5. new enforcement measures

Over the fold, I summarise the announcements, and offer some commentary.

(more…)

Yochai Benkler has followed a trend set by such people as Larry Lessig and Michael Geist, and made his new book, The Wealth of Networks, available under a Creative Commons License. He’s gone further than Lessig or Geist, I think, and has put the ideas in the book - which are all about commons-based and cooperative production - to the test in the real world. It will be of interest to anyone who thinks the whole concept of the Commons, Creative Commons, and ’social production’ are interesting. Comments on this method of publication, and the book itself, over the fold. (more…)

Coverage today of a judgment, handed down yesterday, in the Kazaa proceedings. For those who joined us late (are there any of you?), Kazaa (P2P Software provider) has been sued for authorising infringement of copyright by users of the P2P file-sharing software. Justice Wilcox handed down judgment last year, holding they were liable for authorisation, and an appeal from that judgment was heard in early February. Judgment in the appeal is reserved. In the meantime, however, there’s proceedings going on for contempt, because the trial judge did not stay his injunction pending the appeal. That is, Kazaa was ordered, in the meantime, to take steps to stop authorising infringement. And there’s a live question as to whether they’ve done enough. The judgment raises some really interesting questions about contempt. More, much more, over the fold. (more…)